Substantial Change in Circumstances

Within the last week, a Los Angeles judge ruled against a petition filed by Halle Berry to relocate her daughter with actor and model Gabriel Aubry, to France. Aubry objected to Berry’s request. Presumably, Berry wanted to relocate her daughter to France because of her engagement to actor Olivier Martinez. Berry has also stated that France has stronger paparazzi laws, which would provide more protection for her daughter.

Child Custody Modification in Iowa

In Iowa, a child custody/visitation schedule may be modified by a court if the petitioning party show, by a preponderance of the evidence, there has been a substantial and material change in circumstances since the entry of the decree. The changes need to be permanent in nature. Also, the party attempting to switch the primary care of the child needs to show that they can provide superior care than the other parent. The courts recognize the importance of stability in a child’s life, thus the burden for justifying a change in location is high.

“Once a physical care arrangement is established, the party seeking to modify it bears a heightened burden, and we will modify the arrangement only for most cogent reasons.” Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996).

The court must also consider the following factors:

Best interests of the children

Child’s preference (but less weight in modification than in initial custody proceedings)

Siblings should not be separated

Conduct of the custodial parent (including whether the parent encourages and facilitates the child’s relationship with the other parent),including denial of visitation or contact.

Stability for the Child

If Berry’s case were held in Iowa, she would need to show that her move to France is permanent, and that she can care for the child in a superior manner as compared to Aubry. She must show that the move is material and substantial in nature. She then would have to overcome all of the additional factors the court must consider in a child custody modification case. Examining all of these hurdles leads one to believe that, as her petition was unsuccessful in California, it would also be unsuccessful here in Iowa.

The Iowa Court of Appeals recently affirmed the decision of a Hamilton County Court to dismiss the child support modification application of Amy Eger. Ms. Eger and her former husband Michael married in 1997 and had 2 sons. Their stipulated divorce decree included shared legal custody and joint physical care of their children. Because the couple earned similar incomes and was sharing the responsibility of their sons’ care, neither party was required to pay child support.

Application to Modify Child Support

Two years after the divorce decree was entered, Amy filed an application seeking to increase Michael’s child support amount from $0 to $240.78. Amy claimed that the original arrangement differs more than 10% form the Iowa child support guidelines. Alternatively, Michael testified that he does indeed already pay to support his son’s sports activities and contributes financially when he has physical care of the boys every other week. He also argues that their individual incomes have not changed since their divorce. (He earned approximately $40,000 and she earned approximately $33,000).

Analysis of the Court in Affirming Decision to Dismiss Child Support Modification Application

The Iowa Court of Appeals reviews child support modification proceedings de novo. The “de novo” standard of review means that the court will consider all legal and factual issues anew, giving weight to the trial court’s findings of fact, especially the credibility of witnesses, but are not bound by the court’s findings.

Modifying Child Support Orders

“Substantial Change in Circumstances”

To successfully modify child support in Iowa, Amy must establish there has been a “substantial change in the circumstances of the parties” since the time of the decree. The decree that was originally entered was final as to the circumstances existing at the time. Therefore, if there is a substantial change in those circumstances, the court will be allowed to modify the amount of support originally set.

“Injustice” or “Failure to do Equity”

In addition to the substantial change in circumstances, Amy must also establish that continued enforcement of the original child support order would result in a wrong or injustice.

In denying Amy’s application for support modification, the District Court found that there was a 10% difference between what Michael should be paying and what he was required to pay. However, unfortunately for Amy, this difference existed at the time the decree was stipulated to. Therefore, the court decided that to apply the child support guidelines at this point, and not earlier when the decree was agreed upon would be inequitable.

Regretting the Original Decree

The Appeals Court concludes that Amy, “now regretting at the time of divorce, seeks to use a “mechanical” application of the Iowa Code to get out of her commitment.” The court explains that all of the circumstances that are now true, were also true or could have been reasonably anticipated when the original divorce decree was agreed to. Ultimately, they find that Amy has not established a substantial change in circumstances to justify a modification to the child support agreement.

The court also finds that the continued enforcement of the decree requiring neither party to pay support does not result in any wrong or injustice.